When it prescribes a debt and until when it can be published
When you prescribe a debt?
Any professional or entrepreneur who is dedicated to the world of claiming defaults, will recognize that one of the most important and recurring issues in this area, and among those that most concern debtors and creditors, is the one related to when it prescribes a debt and what consequences have.
The question that many people ask themselves is. Do they really prescribe debts? How much time do you have to spend? What can I do to avoid it, if I am the creditor? How can I enforce the prescription, if I am the debtor?
Keep reading, we’ll explain everything
I. When it prescribes a debt regarding your legal claim.
What has to happen for the legal action for claiming a debt to prescribe?
First of all, we have to underline a fact that many people who wonder when they prescribe a debt escapes it and that, even, usually seems unbelievable: the obligations (to pay, to do or not to do) really do not prescribe What you can prescribe is the possibility of claiming compliance by judicial means, that is, it does prescribe what is called the legal action in law .
This means that if the debtor complies with his payment obligation , even if the period legally stipulated to exercise the creditor before the courts has already passed the judicial action and, therefore, the prescription of the same has already taken place , he may not later claim the return claiming that it no longer existed since, strictly speaking, it did exist, although the creditor had already lost the possibility of claiming it judicially.
In order to provide legal certainty to the exercise of legal actions and not to leave uncertainty when it prescribes a debt , our legislation tells us that, if they owe you money and do not claim it, after a while your neglect causes you to lose the opportunity to go to court
That said, although it is true that the obligations survive over time, obviously if the creditor lets it pass and the legal action to claim them prescribes, the latter will have lost the strength and legal means to be able to demand compliance from the debtor which, a colloquial effects, can be compared almost with considering that the obligation has been extinguished, although this is not really so.
Therefore, once it is clarified that when, when we ask when a debt is prescribed , what we are really talking about is the prescription of the legal action to claim it, we will go to our Civil Code to know what has to happen for this prescription to take place:
From the observation of article 1.973 of the Civil Code, we conclude that the prescription of actions takes place when these requirements are met:
– That the creditor of the debt has allowed to pass the legally foreseen time without acting to obtain the payment of the debt.
– That this inaction of the creditor has consisted in not claiming judicially or extrajudicially to the debtor the fulfillment of his obligation.
– That, during all this period, the debtor has not made any statement or act of recognition of the debt .
It is true that the Commercial Code, regarding commercial acts, gives a somewhat different answer to the question of when it prescribes a debt , not picking up the possibility of interrupting the limitation period due to extrajudicial claim, but another new possibility for it , as is the renewal of the contract from which the debt emanated. However, the jurisprudence of the Supreme Court has also considered the causes of interruption of the prescription provided for in the Civil Code to be extended to commercial acts .
Therefore, the truth is that, in order to provide legal certainty the exercise of legal actions and not leave uncertainty when prescribing a debt , our legislation tells us that, if they owe you money and do not claim it, after a while your negligence causes you to miss the opportunity to go to court to force the debtor to pay. That diligent action of the creditor, to claim what is owed, can be done by submitting the corresponding claim or sending a payment request to the debtor, which, so that it really has value and no problems arise, must be in writing and sent by any reliable means that also proves its content. Normally, the most appropriate options will be the burofax with acknowledgment of receipt and text certification, and the notarial requirement .
Interrupted the term of the prescription with the requirement, the timer not only stops, but returns to the point of departure .
What are the statute of limitations for the action to claim a debt?
Once we know why and how it prescribes a payment obligation, we will now respond to when it prescribes a debt , that is, the deadlines to understand that the possibility of filing a claim to demand payment has been extinguished.
Regarding this issue, we find, on the one hand, a general term that applies to any personal obligation that does not have a different term indicated by the legislation and, on the other hand, we have the special deadlines for the prescription of certain specific debts .
As for the general term , prior to the entry into force on October 7, 2015 of Law 42/2015, of October 5, on the reform of Law 1/2000 of January 7, on Civil Procedure, it was fifteen years , as established in article 1.964 of the Civil Code. However, the aforementioned Law amended this article regarding when it prescribes a debt and, at present , this general term is only five years . In the event that we are facing an obligation whose expiration took place before October 7, 2015, but whose calculation for the prescription had not yet been fulfilled at that time, this period is continued after this date but up to a maximum five years from it. To clarify this point, let’s give a couple of examples of when it prescribes a debt that was born before the legal modification :
– If a debt expired on November 1, 2014, the creditor, according to the legislation in force at that time, would have until November 1, 2029 (fifteen years later), to claim payment and thus prevent the prescription from operating . However, on October 7, 2015, the modification entered into force, reducing the term to five years and, according to the forecast contained in said modification, being a debt with a limitation period not yet consumed, it will continue to have a maximum of five years from the date of the modification. Therefore, the limitation period will expire on October 7, 2020.
The Law amended this article regarding when it prescribes a debt and, at present , this general term is only five years
– On the other hand, with respect to a debt that expires on November 1, 2003, the statute of limitations will continue to be met fifteen years later, on November 1, 2018, since it is within five years after the entry into force of the modification.
When this reduction of the general limitation period occurs, it is equal to one of the special terms provided for in the Civil Code, of five years, to pay debts with deferred payments, leases and food allowances, so that these cases They are no longer exceptions to the general rule of when it prescribes a debt .
On the other hand, we do find many other exceptions to the general term of five years , among others:
- Thirty years : real actions on real estate.
- Twenty years : mortgage shares.
- Four years : actions to demand responsibility from the administrators of a company.
- Three years : actions to demand payment due to liberal professionals, pharmacists, servants and day laborers, innkeepers or merchants (when the buyer is an individual for their own use). Also in the case of foreign exchange shares (bill of exchange and promissory note).
- One year : actions to recover or retain possession, civil liability for insult or slander and extra-contractual liability.
- Six months : exchange action (check).
II. When it prescribes a debt for delinquent files.
When do you prescribe a debt regarding publication in a delinquent file?
Many of our clients, especially those who have legal training or who, directly, are legal professionals, sometimes raise questions about the period they may have to publish the data of a debtor in our delinquency file , identifying, in Sometimes, the rules on when to prescribe a debt , which we have explained above, with the expected time for a person’s data to remain included in a delinquent file. Even, in many cases, there is some confusion between one case and another, regarding the possibilities of interruption of the limitation period, which we have also seen.
In the first place, we must be blunt when it comes to affirming that we are faced with different situations: the statute of limitations established in our system for the exercise of legal actions in claim of unfulfilled obligations is not the same, and that it can be interrupted , that the time also established in our laws for, in this case, the inclusion of a debtor in a delinquency file that, in addition, has no fixed interruption mode.
Indeed, Royal Decree 1720/2007, of December 21, which approves the Regulations for the development of Organic Law 15/1999, of December 13, on the protection of personal data, established in Article 38.1. b) the term of six years to be able to include a debt in a delinquency file , counting from the moment of its expiration, a term that, in addition, is foreseen to the mode of expiration , that is, that there is no way to interrupt it for more than claims or actions of any kind are made. This calculation, as it is to be assumed, does not have any relation to the issues related to when it prescribes a debt , as regards the exercise of legal actions, so that both terms run in parallel , and it may happen that a debt whose legal action has already prescribed, can continue to be recorded in the file, demonstrating once again the explanation we made at the beginning that the debts, in themselves, are not extinguished by the course of time, but the option to claim them judicially.
six-year term to be able to include a debt in a delinquent file , counting from the moment of expiration of this, term that, in addition, is foreseen to the mode of expiration , that is, that there is no way to interrupt it
It can also happen that a debt whose statute of limitations has not been met or has been interrupted, can no longer be included in a delinquent file because the six years have elapsed since expiration.